United States Fidelity & Guaranty Co. v. Superior Court

PRESTON, J.

Petition for writ of prohibition to forever restrain respondent court from proceeding with the hereinafter described action.

On April 17, 1929, an employee of Dutton Dredge Company sustained an industrial injury and in a proceeding before the Industrial Accident Commission, in which both petitioner and said employer were defendants, procured a compensation award against the employer. In said proceeding the defendants filed separate answers presenting the issue of whether petitioner was at the time of said injury the compensation insurance carrier for the employer and upon this issue the commission found that petitioner was not then the insurance carrier for the employer and ordered petitioner to be released and discharged from liability. No review of the award, was sought and it became final.

In December, 1929, the employer filed in respondent court against petitioner the action here sought to be

[470]

arrested. The complaint is in two counts. The first count alleges that in 1921 plaintiff entered into a compensation insurance contract with defendant, to be terminated only by notice in writing, pursuant to which defendant kept plaintiff continuously insured up to December 27, 1928, upon which date, disregarding said agreement and without notice to or knowledge of plaintiff, it permitted said insurance to lapse; that plaintiff relied upon said agreement and was unaware of its violation until three days after the injury to its said employee, terminating in the imposition upon it by the commission of a total liability of $2,990.05, no part of which the defendant assumed or paid. The second count incorporates all of the allegations of the first count and further alleges that during all the years subsequent to 1921, defendant sent representatives to plaintiff’s office at short intervals to examine its books and figure the premiums due for said insurance, one such visit being made in January, 1929, and another between April 1 and 10, 1929; that during March, 1929, defendant even presented a bill showing a premium of $368.72 then due, which plaintiff paid on April 11, 1929, still having no knowledge that defendant had permitted the insurance to lapse. The pleading then alleges that for these reasons plaintiff is entitled to a policy dated as of December 27, 1928, and to reimbursement for past payments made to and protection from future payments due said employee under his said award. The prayer of the complaint is first, for said sum of $2,990.05 as damages for breach of contract; second, for the relief just above mentioned and third, for such other relief as may seem just and proper. A demurrer to the complaint on the ground of want of jurisdiction of the subject matter was overruled and defendant later instituted this proceeding for prohibition to restrain the court below from proceeding with trial of the action.